102 So. 844 | Miss. | 1925
Lead Opinion
delivered the opinion of the court.
The appellant was indicted, tried, and convicted of the murder of one Louis Faye, and, the jury having disagreed as to the punishment, he was by the court sentenced to
The uncontradicted testimony in the case shows that the deceased, Faye, had been for several hours at the home of a woman by the name of Juanita Thompson; that during the early part of the evening a man by the name of Cruthirds came to this home and was ordered to leave by Faye, who was armed with a pistol. The testimony is conflicting as to whether Faye unintentionally shot off his pistol, or shot at Cruthirds, but at any rate the pistol was fired, and Cruthirds left the house. Cruthirds then called at the place of business of the appellant, who was city marshal of Pass Christian, and, according to the testimony of appellant Cruthirds informed him that Faye had shot at him, and he wanted appellant to arrest Faye. "Whereupon the appellant and Cruthirds proceeded to the home of Juanita Thompson. The testimony relating to the shooting is conflicting. The dying-declaration of Faye was to the effect that he was getting-ready to leave the Thompson home, and had picked up his pistol, and was going out to put it in his car, and that when he was on the front porch the appellant stepped up on the porch and shot him six times before he could say anything; that appellant said nothing to him, but stepped up on the porch and began shooting; that he did not attempt to shoot appellant.
The evidence on behalf of appellant was to the effect that he demanded of Faye that he consider himself under arrest for shooting- at Cruthirds, when Faye presented his pistol toward appellant as if to shoot him, and thereupon appellant shot deceased. In other words, appellant’s evidence made a case of self-defense while the evidence of the state made a case of murder. The dying-declaration of the deceased was testified to by the district attorney to whom it was made. He testified further that Faye’s dying declaration was taken down in shorthand by a stenographer, transcribed, and given to him, and that at the time he was testifying- he had this copy
On motion for a new trial the following facts were shown by members of the jury who convicted appellant. Arguments in the case were concluded at night. The following morning, while the jury were at breakfast at a cafe, two of the jurors bought copies of the Times-Picayune purporting to contain an account of the trial. These newspapers were taken into the jury room. We now quote from the testimony of one of the jurors:
“Before those papers were brought there were ten for conviction and two for acquittal, and we came to our*742 room, upstairs and talked over the matter a little while, and then it was eleven to one and that was before anything was said about the newspapers. When it stood eleven to one this juror read the paper before he decided on his verdict. After he got through reading it we took another vote on our verdict. ’ ’
The article begins on the first page of the paper, it is headed:
“Sprinkle laughs at murder trial; fate.in balance.”
The latter part of it reads as follows:
“Sprinkle has figured conspicuously in the; court records of Harrison county for the last fifteen months. He first sprang into notoriety when he was charged by the Sellier Brothers with hi-jacking a cargo of liquor valued at fifty thousand dollars from the Mary K off Henderson Point in April of 1923. He was next charged with killing a negro, whom he claimed he was trying to place under arrest and was acquitted on the plea of self-defense, and this was followed not long afterward by the fatal shpoting of Faye.
“Mass meetings have been held at Pass Christian to remove Sprinkle from office and the mayor and board of aldermen have sought by legal means to relieve him of his commission, but without success. His salary was at one time greatly reduced, but he still held on. Having-been elected by the people, it is contended that he cannot be removed from office until he has been convicted of crime. ’ ’
In this article the jury were informed of several matters about which testimony could not have been introduced, namely, of the appellant’s being a conspicuous figure in the court records of Harrison county, also of his being charged with hi-jacking a cargo of liquor. We understand that the common term “hi-jacking” means the robbery of one bootlegger by another. Also of his killing a negro and pleading self-defense, and also of mass meetings by the citizens of Pass Christian in an effort to remove him from the office of city marshal.
“This method of communicating to and impressing upon the jury, or any member of it, the opinions of others is open to the same condemnation which would be visited upon oral expressions of opinion touching the defendant, injected into the body of the jury by some designing intermeddler. We can see no difference, unless in degree. . . . We know of no reported case in which an outside person has been shown to have talked with the jury, or a member of it, concerning the accused when on trial for a high crime, and especially to have talked unfavorably to and with the jury of the accused, in which the verdict has not been set aside. It seems to us impossible to distinguish between the mischief done by oral and written or printed communications. In every instance in which improper influences have been brought to bear upon the jury there will arise the fear that the accused has not had that fair and impartial trial to which he was entitled.”
Before reading this article one of the jurors was for acquittal; almost immediately after reading it he voted for conviction.
The attorney-general contends, however, that the members of the jury were incompetent to prove the purchase and consideration by them of the newspapers containing the article above referred to. He argues that the effect of their testimony was to impeach their own verdict. It is true beyond question that jurors cannot impeach their own verdict. Public policy forbids that a matter resting' in the personal consciousness of the jurors should be received to overthrow their verdict. Being personal, such
On the objection of the state the trial court excluded testimony offered by appellant to the effect that deceased had the reputation of habitually going armed, and also a bad reputation for peace and such character was known to appellant. In a case like this where the question is whether the deceased or the slayer is the aggressor such evidence should be received. Moriarty v. State, 62 Miss. 654; King v. State, 65 Miss. 576, 5 So. 97, 7 Am. St. Rep. 681.
Error is assigned to the giving of certain of the state’s 'instructions. , Two of these instructions are inaccurate
We find no foundation in the record for the other assignments of errors.
Reversed and remcmded.
Dissenting Opinion
(dissenting).
I am of the opinion that:
1. The evidence of certain jurors as to the purchase and reading by one or more of their fellows of a newspaper containing an article derogatory to the appellant was incompetent, and the court below committed no error in disregarding it. This court’s predecessor, the High Court of Errors and Appeals, so held in Nelms v. State, 13 Smedes & M. 500, 53 Am. Dec. 94, wherein Chief Justice Sharkey as its organ said:
“The general rule is that a juror shall not be allowed to impeach the verdict by disclosing his own misconduct. . . . or that of his fellows.”
And in Shaw v. State, 79 Miss. 577, 31 So. 209, the case relied on, in the opinion in chief, it was expressly held that—“Jurors may not be heard to impeach their verdict by showing their own misconduct, or what took place in their private room.”
The evidence of jurors here held to be competent discloses, not only misconduct “of their fellows,” but also “what took place in their private room.”
2. The court below committed no error in declining to force the district attorney to turn over to counsel for the appellant the transcribed stenographic notes of the appellant’s alleged confession. This transcript had not been approved by the, appellant, was not used by any witness in order to refresh his recollection of the confession, and could not have been introduced as evidence of the confession.
3. Conceding the admissibility of the evidence of the deceased’s habit of carrying a concealed weapon, but-
The judgment of the court below should be affirmed.